Operations which breach customs legislation, including infringements of intellectual property rights, are prejudicial to the economic and financial interests of Community and Chinese players alike. The European Union and China have concluded an agreement to enhance cooperation between their administrative authorities. The advantage of such cooperation for the EU budget and the European taxpayer is clear: own resources derive in part from customs duties

ACT

Council Decision 2004/889/EC of 16 November 2004 on the conclusion of an Agreement between the European Community and the Government of the People's Republic of China on cooperation and mutual administrative assistance in customs matters.

SUMMARY

This Agreement improves cooperation between the administrative authorities responsible for the application of customs legislation *. Action to tackle operations in breach of EU and Chinese customs legislation is more effective if it is backed up by mutual assistance in customs matters. The operations concerned are those prejudicial to the economic, fiscal and commercial interests of the Parties: it is essential to any State to ensure the accurate assessment of customs duties and other taxes.

Developing customs cooperation

The Parties to the Agreement undertake to develop customs cooperation, in particular by:

providing each other with technical assistance, e.g. exchanges of personnel and experts, training and the exchange of professional data, etc.;

seeking a coordinated position when customs topics are discussed in international organisations.

Mutual administrative assistance

Under the Agreement, customs authorities will assist each other by providing information to ensure the proper application of customs legislation: this does not prejudice the application of existing rules governing mutual assistance in criminal matters. Nor does it apply to information obtained at the request of judicial authorities. However, assistance to recover duties, taxes or fines, the arrest or detention of any person and the seizure or detention of property is not covered by this Agreement. The Agreement with China provides both for assistance on request and spontaneous assistance.

Assistance on request: The requested authority must provide the applicant authority with all information which may enable it to ensure that customs legislation is correctly applied. Such information may relate to:

activities that may result in offences within the territory of the other Party, for example, the presentation of incorrect declarations or other falsified documents;

the authenticity of official documents produced in support of a goods declaration;

the legality of exports and imports of goods from the territory of one of the Contracting Parties to the territory of the other and the customs procedure applied.

The requested authority must also, within the framework of its competence and at the request of the applicant authority, take the necessary steps to ensure special surveillance. Surveillance relates to persons in respect of whom there are reasonable grounds for believing that they have committed an infringement of the customs legislation of one of the Parties. It can also cover places, stocks and goods transported, as well as means of transport that may have been used under fraudulent conditions.

6. Spontaneous assistance: In cases where a formal request is not possible in view of the urgency of a situation that could involve substantial damage to the economy, public health, public security or similar vital interest, the Parties will assist each other at their own initiative.

Formal aspects and exceptions to the obligation to provide assistance

Requests must comply with certain requirements of form and substance in relation to: the formal endorsement of the applicant authority, the action requested, the object of and the reason for the request, etc. The requested authority proceeds, within the limits of its competence and available resources, as though it were acting on its own account. It executes the requests in accordance with the legally binding instruments applicable in its own jurisdiction. The response must be in writing.

Exceptions to the obligation to provide assistance are allowed: assistance may be refused or may be subject to certain requirements if it is likely to prejudice:

the sovereignty of the People's Republic of China or that of an EU Member State which has been requested to provide assistance;

public order, security or other essential interests.

The Agreement contains confidentiality clauses in relation to the information provided. The Agreement applies to the customs territory of the People's Republic of China and to the territories in which the Treaty establishing the European Communities is applied, i.e. in the 25 EU Member States. It entered into force on 1 April 2005.

Key terms

Customs legislation: customs legislation includes any legal provisions of the European Community or of China which govern the import, export and transit of goods or their placing under any other customs regime or procedure, including measures of prohibition, restriction and control (Article 1(a)).